A partition may be executed solely on property that is capable of being partitioned. Any separate property held by a coparcener within the Joint family cannot be subjected to partition. In the case of Mrutunjay Mohapatra v. Prana Krushna Mohapatra, the Court ruled that property purchased by the elder brother with personal funds cannot be partitioned or included in the Joint Family estate at the behest of a younger brother.

Furthermore, in the case of Prafulla Kumar Mohapatra v. Joy Kanta Krushna Mohapatra, the court determined that property belonging to a paternal uncle, lacking substantial evidence regarding the claimant's father's share, is to be considered separate property rather than Joint Hindu family property.

Concept of Partition under Mitakshara and Dayabhaga School

The Hindu legal concept of partition is primarily governed by two distinct schools of thought the Mitakshara and Dayabhaga schools, each providing unique interpretations of the term "Partition." Within the Mitakshara school, partition involves more than simply dividing property among coparceners; it involves a reconfiguration of status alongside severance of interest. In ancestral property, shares of coparceners fluctuate with births and deaths within the joint family, with births reducing shares and deaths increasing them inherently. Property rights are established by birth, and devolution occurs through survivorship. Thus, partition is considered complete upon the delineation of shares, eliminating the need for physical division of property. Accordingly, unity of ownership is deemed essential to coparcenary under the Mitakshara school.

I. In contrast, the Dayabhaga school grants each adult coparcener the right to demand partition through physical demarcation of shares, necessitating partition by bounds and meets in accordance with specific share demarcations.

II. Under the Mitakshara school, there is no requirement for the demarcation of property into specific shares, with the essentials of a coparcener needing establishment. The presence of joint property is not mandatory for partition demand; instead, a clear and unambiguous declaration of intent to separate from the family suffices.

Essentials of a Valid Partition

It is important to recognize that a coparcener has the inherent right to demand a partition at any time, without needing the consent of the other coparceners. To properly initiate a partition demand, the following conditions must be met:

I. Manifestation of an intention to separate from the Joint Family.

II. Issuance of a clear, unequivocal, and unilateral declaration articulating the intent to sever ties with the Joint Family.

III. Communication of the intention to the Karta or to other coparceners in the event of the Karta's absence.

Modes of Partition

I. Partition by Father: Under Hindu law, the father, by virtue of his authority, can separate himself from the joint family and also effect a partition among his sons, including minors.

II. Partition by Agreement: When all coparceners agree to dissolve the joint status, it is termed as partition by agreement. Court recognition of such partition depends on mutual agreement.

III. Partition by Suit: A common method is initiating a suit in court, where the plaintiff unequivocally expresses the intention to separate, thereby terminating his status in the joint family property.

IV. Partition by Conversion: Conversion to a non-Hindu religion results in severance of coparcenary status, affecting the converted member's membership in the joint family.

V. Partition by Arbitration: Coparceners may appoint an arbitrator to divide the property, making the partition effective from the date of agreement.

VI. Partition by Notice: Partition can occur by communicating the intention to separate to other coparceners, either with or without a lawsuit.

Property Available for Partition After Deductions and Provisions

Upon division of joint family property, all associated liabilities must be settled:

I. Debts: Provisions must be made to repay joint family debts from the joint family property.

II. Maintenance: Certain members of the joint Hindu family, who are not coparceners, are entitled to maintenance, including:

a) Unmarried sisters until their marriage.
b) Mother and grandmother.
c) Disqualified coparceners and their immediate dependents.
d) Widowed daughters of deceased coparceners.

III. Marriage Expenses: In partitions between fathers and sons, provisions must be made for the marriage of the father's unmarried daughters.

IV. Performance of Ceremonies: In partitions among brothers, provisions must be made for funeral expenses for their mother and for other significant ceremonies.

Reopening of Partition:

Hindu law allows for the reopening or revocation of partition under certain circumstances:

– Mistake: If members are inadvertently left out of the partition, it can be rectified later.

– Fraud: Partitions based on fraudulent activities can be revoked.

– Disqualified Coparcener: Disqualified coparceners can challenge their exclusion from the partition.

– Son in Womb: If a son is in the womb during partition and not allotted a share, it can be revisited later.

– Absentee Coparcener: Coparceners absent during partition can reopen it if they were not allocated a share.

Reunion under Hindu Law

According to the Dayabhaga, Mitakshara, and the Madras School of Law, once a member of a Joint Family undergoes separation, they can only be reunited with the father, brother, and paternal uncle, excluding other family members. Notably, the initiation of reunion rests solely with a coparcener.

For a reunion to occur, there must be a clear intention from the parties involved indicating their desire to reunite within the Joint family. This intention can be either expressed or implied. Additionally, the burden of proving reunion lies with the party claiming it.

Members may choose to come together while still maintaining their separate status, or they may opt to reside together or conduct business jointly. However, it's essential to differentiate this reassembly from a formal reunion.

Suit for Partition

Suit for partition within a Joint Hindu Family: where there exists no documentation of joint family income or substantial evidence proving the alleged property was purchased with funds from the joint family income, and where the defendant brother successfully demonstrates through compelling and requisite evidence that the disputed property was acquired from his personal income and resources without reliance on joint family income, the plaintiff-brother's suit is liable for dismissal.

Furthermore, it was judicially established that the presence of family members residing in the same premises does not automatically presume the existence of a joint family nucleus concerning income, unless substantiated by cogent legal evidence.

Partition Suit Filed by Minor Son: In a scenario where a partition suit is initiated by a minor son, and it is undisputed that both the Karta and his son are entitled to an equal share of the property in question, but subsequently, it is discovered that the Karta sold a portion of the property without the consent or knowledge of the minor son, it is determined that the portion already sold by the Karta cannot be allocated to his intended share in the partition. Consequently, no inherent prejudice is suffered by the minor son due to the sale, and thus, the impugned order regarding the sale is deemed valid and requires no further intervention.

Partition Suit Filed by Widow: In the event of a partition suit initiated by a member of a Joint Hindu Family, it is imperative that all coparceners be named as defendants. However, in cases where partition is sought between branches, only the representative parties of the concerned branches need to be named as defendants. Notably, all female members of the family are entitled to a share in the partition, and a purchaser of a coparcener's vested interest may also be implicated as a defendant.

In the case of Jingulaiah Subramanyam Naidu v. Jinguliah Venkatesulu Naidu, it was ruled that in instances where partition of a specific property is sought, the titleholder of said property must be included as a necessary party to the partition proceedings.